BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: AB 1273 HEARING DATE: June 25, 2013
AUTHOR: Ting URGENCY: No
VERSION: June 19, 2013 CONSULTANT: Bill Craven
DUAL REFERRAL: Governance and FinanceFISCAL: Yes
SUBJECT: Tidelands and submerged lands: City and County of San
Francisco: Pier 30-32: multipurpose venue.
SUMMARY
This bill seeks a determination from the Legislature that a
proposed multi-purpose venue at Piers 30-32 in San Francisco Bay
furthers the purposes of the common law public trust for
commerce, navigation, and fisheries. The building on Piers 30-32
would include an arena for the Golden State Warriors, an NBA
basketball franchise, which could also serve as a convention
facility. There would be limited retail and parking associated
with this venue.
The California Legislature is the ultimate trustee of Public
Trust lands.
Other development across the street from the two piers, on a
separate 3 acre parcel, would be a part of the overall project
although that lot is not a part of the public trust
determination. That lot is called Seawall Lot 330.
In 2012, San Francisco entered into an agreement with the Golden
State Warriors to build a new, state-of-the-art, LEED Gold
multi-purpose facility capable of being used for Warriors' home
games, other events including conventions, and expanding public
access to the waterfront, among other things.
The permitting for this project involves approvals by many
organizations, chiefly the Bay Conservation and Development
Commission (BCDC), the Board of Supervisors of the City and
County of San Francisco, and the State Lands Commission (SLC).
Additionally, the project is subject to a full review under the
California Environmental Quality Act which is now in the early
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stages of preparing a draft environmental impact report. None of
the approvals or reviews have been completed.
The proponents of the project are asking the Legislature,
because of previous legislation on these two piers, for an early
indication that the proposed project is consistent with the
Public Trust doctrine. That is the overriding purpose of the
bill.
There is general agreement (from all sides) that determining
whether the proposed project is or is not consistent with the
Public Trust doctrine is an intensely complicated legal and
policy question.
Many other non-public trust considerations have been articulated
in support of and in opposition to the project. It is important
to note that the central issue before the Committee is the
public trust question.
The most recent development was a recent vote (6/19/13) by BCDC
to oppose the bill unless it is made a two-year bill.
BACKGROUND AND EXISTING LAW
1. In 1968, the Legislature in the Burton Act granted the
tidelands and submerged lands along the San Francisco waterfront
to the City and County of San Francisco to be controlled and
managed by the San Francisco Port Commission (Port).
2. The SLC administers Public Trust lands not granted to the
local agencies and oversees the activities of local grantees
such as the Port.
3. The Public Trust Doctrine began as an ancient common law
doctrine and exists today as a robust and vital common law
doctrine that protects the public's right to use California's
waterways and waterfronts for commerce, navigation, fishing,
boating, natural habitat protection, and other water oriented
activities. In general, the public trust doctrine provides that
filled and unfilled tide and submerged lands and the beds of
lakes, streams, and other navigable waterways (i.e. public trust
lands) are to be held in trust by the state for the benefit of
the people of California.
4. The California Constitution prohibits the sale of tidelands
to private interests of tidelands fronting on a waterway used
for navigation and within 2 miles of an incorporated city.
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5. This prohibition may be lifted by the Legislature if it finds
that specific tidelands are no longer needed for navigation or
if the lands are part of a highly beneficial program of harbor
development and constitute a relatively small portion of the
lands granted to the local agency.
6. Legislative trust grants to local grantees (such as, in this
case, the Burton Act's grant of tidelands to the City and County
of San Francisco) place limits on the permissible uses of the
trust property.
7. While some projects clearly are consistent with the public
trust and some projects clearly are not consistent with the
public trust, more complicated Public Trust consistency
determinations are handled on a case-by-case basis and are
intensely fact-specific. Guidance can be found from previous
court decisions, opinions of the California Attorney General,
and resolutions and advice letters from the SLC.
8. The SLC is the steward and manager of the state's public
trust lands. The SLC has direct administrative control over the
state's public trust lands and oversight authority over public
trust lands granted by the Legislature to more than 80 local
public agencies.
9. A definition of the Public Trust attributed to the SLC is
useful in framing how a public trust determination in this
instance may be evaluated:
"Uses of trust lands, whether granted to a local agency or
administered by the State directed, are generally limited to
those that are water dependent or related, and include commerce,
fisheries and navigation, environmental preservation and
recreation. Public trust uses include, among others, ports,
marinas, docks and wharves, buoys, hunting, commercial and sport
fishing, bathing, swimming, and boating. Public trust lands may
also be kept in their natural state for habitat, wildlife
refuges, scientific study, or open space. Ancillary or
incidental uses, that is, uses that directly promote trust uses,
are directly supportive and necessary for trust uses, or that
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accomodate the public's enjoyment of trust lands, are also
permitted. "
10. Fact-specific determinations of the Public Trust doctrine
have determined that local-serving uses (such as grocery stores)
that do not require a waterfront location and private uses (such
as housing) are not consistent with the Public Trust doctrine.
On the other hand, visitor-serving facilities, including visitor
serving retail, restaurants and hotels, are considered
appropriate ancillary or incidental uses that directly promote
Public Trust uses of the waterfront and facilitate the public's
access to and enjoyment of the waterfront.
11. Chapter 489 of the Statutes of 2001 (AB 1389, Shelley) and
Chapter 68 of the Statutes of 2003 (AB 605, Yee), authorizes the
Port to approve a cruise ship terminal development on the San
Francisco waterfront at Pier 30-32, which would include general
office and retail use. That project would have had much more
commercial and retail square footage than the proposed project
at Piers 30-32.
12. Chapter 477 of the Statutes of 2011(AB 418, Ammiano), frees
the public trust restrictions from Seawall Lot 330 (which is
across the Embarcadero from Pier 30-32) and authorizes the
transfer of the property to a private party subject to specified
conditions.
13. AB 664 (Ammiano) was the bill that authorized the America's
Cup yacht racing event to be held at these two piers, although
that race re-located to a different location on the Bay. It
contained declarations to the effect that the comprehensive
re-financing of the district near the piers and the race
furthered the objective of the Public Trust.
14. The McAteer-Petris Act establishes the land use regulatory
jurisdiction of the San Francisco Bay Conservation and
Development Commission (BCDC) to include, among other things,
the San Francisco Bay and a shoreline band consisting of all
territory located between the shoreline of San Francisco Bay and
a line 100 feet landward of and parallel with that line.
PROPOSED LAW
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Because of the prior legislative involvement with these two
particular piers in the San Francisco Bay, the proponents are
seeking a legislative determination early in the process that
the proposed use of the piers is consistent with the Public
Trust.
Assuming the proposed project is consistent with the Public
Trust, the sponsors want to proceed with the development
proposal that AB 1273 would authorize and that was briefly
described earlier. The proposal can be summarized as follows:
1. Authorizes the SLC to approve a development on the San
Francisco waterfront at Pier 30-32, that includes a multipurpose
venue if it finds that all of the following conditions are met:
a) The development is designed to attract people to the
waterfront, increase public enjoyment of the San Francisco Bay,
encourage public trust activities, and enhance public use of
trust assets and resources on the waterfront;
b) The development is designed to provide multiple significant
views of the Bay Bridge and the San Francisco Bay from a variety
of elevations and vantage points, including significant views of
the Bay Bridge and the San Francisco Bay from the interior
concourses of the multipurpose venue and views of the Bay Bridge
from certain seating areas within the multipurpose venue;
c) The multipurpose venue facility is located to minimize
interference with public views of San Francisco Bay to the
extent feasible;
d) The multipurpose venue facility provides free public access
to patrons and nonpatrons alike to exterior portions of the
building from which the public can view the San Francisco Bay,
subject to reasonable limitations based on security. In
addition, to encourage the public to come to the bay's edge, the
design of the multipurpose venue shall provide significant free
public views of the inside of the multipurpose venue from the
outside, and the operator of the multipurpose venue shall be
required to allow the public to view the inside of the
multipurpose venue from the outside during events whenever
feasible;
e) The development is designed to achieve and enhance maximum
feasible public access to and minimum fill in the bay in a
manner that is consistent, as determined by Bay Conservation and
Development Commission (BCDC) in its separate permit process,
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with the Special Area Plan, the McAteer-Petris Act, and the Bay
Plan;
f) The development includes significant public plazas open to
the public on a substantially permanent basis that can be
accessed via public pedestrian promenades at the site that
encourage public use of the site and provide a variety of views
of the San Francisco Bay and the San Francisco cityscape;
g) The development includes continuous public access around the
perimeter of Pier 30-32 open to the public year round, with
limited exceptions for temporary safety-, security- and
maritime-based interruptions, and includes an interpretive
program to enhance the public's enjoyment of the site;
h) The development includes a significant and appropriate
maritime program which includes:
(1) A city fire station and berthing facilities for city
fire boats, or in lieu thereof, one or more other maritime uses
on the north side of Pier 30-32;
(2) Facilities for berthing at the east end of Pier 30-32,
including facilities that can accommodate periodic use by cruise
or other deep draft vessels, or other facilities that promote
the deep water berth at Pier 30-32
(3) Facilities that enable direct public access to the
water by human-powered vessels or swimmers, if feasible, on the
south side of Pier 30-32, or water-oriented recreational uses
facing the Brannan Street Wharf open water basin; and,
(4) Water-transit docking or berthing facilities for water
taxis, ferries, or both.
i) Any nonmaritime office space on Pier 30-32 is limited to
70,000 square feet;
j) All retail venues on Pier 30-32 are limited to
venue-supporting or trust-retail uses;
k) Any parking included on Pier 30-32 is for public parking, not
residential or commuter uses.
l) Public trust-consistent events, uses, and programming are
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offered regularly at the site of the development. The site shall
be made available to the Port or its designee for those events
on at least 15 days per year, including at least three days on
which the multipurpose venue shall be made available to the Port
or its designee for those events. These events shall include
free and low-cost visitor-serving events;
m) A public community room is available at the site for free or
low-cost use by members of the public statewide, without
preference to local residents or organizations;
n) The development of the site is required to be consistent with
a plan to address anticipated sea-level rise through year 2050;
o) The development approved for Seawall Lot 330 (which is across
the Embarcadero from Pier 30-32) includes a hotel or other
visitor-serving uses that the SLC finds will materially enhance
public trust uses on Pier 30-32 and the San Francisco
waterfront;
p) The City of San Francisco has completed the CEQA process for
the project;
q) A major permit application has been submitted to BCDC; and
r) Consultation between the SLC and BCDC has occurred to
determine consistency with these conditions.
2. The bill further provides for what is essentially a
monitoring program which is called a "trust program report" by
which the Port would assure the SLC at 5 year intervals that the
conditions for public uses at the site are maintained as
described above. Those five year reports are to include:
(1) A list and description of the trust-related events and
programming that have occurred at the site of the mixed-use
development and in the multipurpose venue over the preceding
five-year period, including the dates on which the events
occurred or the multipurpose venue was made available for those
events, and identifying any free and low-cost visitor-serving
events;
(2) A description of the efforts made by the Port, its tenants,
and subtenants to publicize the availability of Pier 30-32,
including the multipurpose venue, for trust-related events and
other efforts undertaken to solicit such events;
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(3) A description of the maritime program on those portions of
Pier 30-32 within the purview of the Port or the City, including
a list of the facilities constructed, identification of any
tenants, licensees, or other operators of the maritime
facilities, and a description of the nature and frequency of the
maritime use;
(4) A description of the tenants and use of the non-maritime
office space and the use of the public community room on Pier
30-32; and,
(5) Any other information specifically requested by the State
Lands Commission that pertains to the City or Port program of
trust uses for Pier 30-32 and that is reasonable obtainable by
the City or Port.
3. The bill provides that the Executive Officer of the SLC may
require an implementation plan in case he or she determines that
the trust program is not being fully implemented. The
implementation plan may extend to all the terms and conditions
set forth in the governmental approvals of the project, the
leases and other contracts affecting use of the site. Those
enforcement provisions are triggered by the following two
findings that would have to be made by the Executive Officer:
(1) That Pier 30-32 is not being used for at least 15
trust-related events annually at the site as a whole or is not
being used for at least three trust-related events annually at
the multipurpose venue, as specified; or that the City or the
Port has not implemented the maritime program for Pier 30-32 for
its intended purpose; and,
(2) That the Port, or the City, has not taken effective action
to achieve the objectives specified in (1) above.
4. Section 5 of the bill amends previous legislation regarding
Piers-30-32 and contains the Legislature's authorization of this
project as the trustee of the public trust. That authorization
is dependent upon the SLC making the findings described above.
5. Section 6 contains a finding and declaration that BCDC's
regulatory authority is preserved in its Bay Plan and in the
Special Area Plan that covers the area in which Piers 30-32 are
located.
6. Section 7 specifies that, in addition to the findings that
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the SLC would make pursuant to Section 5, that the SLC review of
the project is limited to confirming the BCDC actions pursuant
to Section 6. This section does not confer public trust
consistency determination to the SLC because, as drafted, that
determination would be made by the Legislature.
7. The bill contains numerous amendments negotiated between BCDC
and the sponsors related to parking, conditions on retail, and a
public benefits package that would be developed separately and
through a public process.
8. The bill contains numerous findings and declarations in
Section 3 that contain the legislative history and its prior
actions with these two piers, the planning processes that have
occurred by the Port, by San Francisco, and by BCDC, among other
items.
9. The bill also contains numerous findings and declarations in
Section 4 specific to the history, current condition, and
estimated expense of preserving Piers 30-32.
ARGUMENTS IN SUPPORT
The author, the City of San Francisco, the Port, and other key
supporters of this bill believe that the proposal from the
Golden State Warriors for a multi-purpose venue at Piers 30-32
with associated commercial development across the Embarcadero at
Seawall Lot 330 represents the best opportunity for revitalizing
the piers and maximizing public use and enjoyment of the site.
The estimate is that this site could host 43 basketball games a
year plus 160 or so other events including concerts,
conventions, and the like.
The Golden State Warriors proposal was made in May, 2012, and
negotiations between all the affected parties began in the fall
of 2012.
These two piers occupy 13 acres at one of the most desirable
locations in San Francisco. Moreover, there is no dispute that
these two piers are in disrepair. Currently, they are used a
parking lot. The estimate to repair the substructure to make the
piers useable for the proposed project is $68 million which the
Port cannot afford. That cost would be paid by the major tenant,
the Golden State Warriors, in part through revenues generated by
the components of the project that would occur on Seawall Lot
330. The useful life of the piers is estimated at 10 years. The
arena itself would be privately financed.
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Supporters point out that this project, including the arena,
unlike other recent stadium proposals that have been before the
Legislature, does not short-circuit environmental review of CEQA
or the regulatory approval processes by any affected agency
pursuant to existing law. Approvals would be required by the
Port, the Board of Supervisors, the State Lands Commission,
BCDC, and the San Francisco Regional Water Quality Control
Board, among others.
The heart of the request of the supporters is that the
Legislature determine at this admittedly early stage of project
development that the project is consistent with the public trust
doctrine. The supporters believe such a determination is
essential to the confidence of the investors and the public
agencies involved in the project that the project could
ultimately be approved.
The sponsors have been engaged in active negotiations with BCDC
and the SLC for months, and they strongly believe that all
remaining details and regulatory approvals can be successfully
completed, even in light of the recent decision of BCDC to
oppose the project unless the author agrees to make the bill
into a two-year bill. Part of the reason for the optimism is
that the bill now reflects agreements between BCDC and the SLC
on several key points.
The supporters contend that this project is directly analogous
to other waterfront projects in California such as the Long
Beach Municipal Auditorium, Long Beach Convention Center, AT&T
Park in San Francisco, and the San Diego Convention Center.
Many other supporters from the San Francisco business and labor
community point to the non-public trust economic benefits of the
project including an estimated 5000 construction jobs and 3000
direct and ongoing jobs. The annual economic output of the
project provided by supporters is $500 million across the entire
Bay region.
ARGUMENTS IN OPPOSITION
In addition to the opposition (unless amended) from BCDC, other
opposition to the bill falls into three general categories: (1)
affected governments and businesses from the East Bay concerned
about regional loss including economic losses, (2) environmental
organizations and some maritime and fishing associations who do
not believe the project is consistent with the Public Trust
doctrine, and (3) those who fundamentally disagree that the
project is appropriate for the waterfront.
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A joint opposition letter from the Mayors of several East Bay
Cities (Berkeley, Oakland, Richmond, and San Leandro) argues
that this bill diminishes the authority of both the State Lands
Commission and the Bay Conservation and Development Commission
in the project approval process. The letter states that
"removing from BCDC or the State Lands Commission any real role
in scrutinizing a massive commercial development on the Bay
would run directly contrary to the very purposes of these two
bodies, each of which has decades of experience balancing the
sometimes competing interests of developing and preserving the
waters, tidelands and submerged lands under their
jurisdictions."
The San Francisco Waterfront Alliance, a group formed in
reaction to this development proposal, argues the position of
BCDC demonstrates that this bill is premature. It also argues
that the bill enables an entertainment complex to be built over
San Francisco Bay waters, a resource that is jointly shared by
nine counties, dozens of cities, millions of citizens, and
enjoyed by millions of visitors.
San Francisco Baykeeper argues that the bill circumvents BCDC
and SLC authority and that the merits of the project should be
assessed under normal procedures. It notes that the failure of
the bill would not constitute a denial of the project.
Save the Bay argues that the construction on the pier and the
project would have significant effects to the Bay's water
quality. It would support uses that would require less repairs,
including consideration of open space or parks.
The board of the Bay Conservation and Development Commission
(BCDC) voted to request that the author convert AB 1273 into a
two-year bill. The BCDC resolution states that the author's
failure to do so would mean BCDC would outright oppose the bill.
A recent staff report from BCDC seriously questioned whether the
proposed project is trust consistent. To quote from the
document, "The proposed arena is not a traditional public trust
use and is proposed on piers that are subject to the public
trust, and for this reason BCDC staff believes that the enclosed
arena use is not, at its heart, trust consistent. However the
State Legislature, subject to judicial review, is the final
arbiter of the public trust in California."
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BCDC staff have noted that some progress has been made in
resolving open issues, and a process to resolve some of the
remaining open issues is also in place. Project design,
including its size, height, and bulk, are all essential to
regulatory approvals, and those inter-related issues are still
in flux so there are no specific outcomes on that particular
open issue. The development of the off-site public benefits
package is deferred by mutual agreement of the parties and will
be established through a public process. Those are the two most
significant unresolved open issues.
An array of other issues have been noted by opponents from San
Francisco itself. These include traffic, walling off the
waterfront in violation of local values, standards, and
requirements, a lack of parking for the estimated 2 million or
so annual patrons of the proposed facility, and massive traffic
jams when major events at the new arena would conflict with
massive crowds at AT&T Park or other major downtown events.
Others have raised the question of whether a deadline should be
established for the project to be built. Still others have
raised the question of whether the major tenant should be
required to pay for all or part of the off-site public benefits
package or offer some sort of compensation to Oakland to make up
for the expected losses at the Oracle Arena there.
COMMENTS
There are three obvious possible outcomes to the Committee's
deliberations on this bill. The bill could pass, fail, or be
held as two-year bill.
Staff is outlining a possible fourth outcome which, at this
stage, is conceptual only. It is offered for the Committee's
consideration as an example of an alternative approach. If the
Committee wants to choose this path, staff would work with
Legislative Counsel to craft the language.
This possible outcome is based on the following assumptions:
1. The project is not yet ready for a determination that it is
consistent with the Public Trust. It is hard to make such a
determination when the design details are not yet finalized.
2. It is also too early to say that the project will never be
consistent with the Public Trust. In fact, it is conceivable
that the project could be consistent with the Public Trust when
the design is finalized, all the regulatory approvals are in
place, the CEQA process has been completed, and the findings by
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designated agencies pursuant to this bill (including the new
provisions mentioned below) have been made.
3. The Legislature, at a future date, could make the Public
Trust determination one way or the other, or alternatively, the
Legislature could assign that task to the State Lands
Commission, a quasi-legislative commission, which is
well-regarded and has the professional skill-sets and
capabilities to make that decision. As mentioned earlier, the
Legislature has delegated exclusive authority over ungranted
public trust lands to the SLC as well as exclusive oversight
jurisdiction on lands granted to local grantees such as, in
this case, the Port of San Francisco. Additionally, all of the
Commission's decisions are made in a properly noticed public
meeting.
4. If the decision is to assign the public trust consistency
question to the SLC, a separate determination should be made by
the SLC that the project, as entitled by the various agencies,
is in the best interest of the state, including consideration of
impacts to public trust resources and local and regional
economic impacts.
As a side comment about this fourth point, the Committee
probably knows that "the best interest of the state" finding is
presently a part of the SLC process for considering both new
offshore oil and gas production leases and land exchanges among
various grantees of public trust lands. In other words, it is a
known standard to the SLC.
Incorporating that factor into the bill would essentially ask
the three members of the SLC (Department of Finance, Controller,
and Lieutenant Governor) not only to make the final public trust
determination (subject to possible legislative review), but also
to determine that even if there is public trust consistency,
that the project is also in in the best interests of the state
as a whole.
5. There are several practical effects of this approach that
should be spelled out:
A. This amendment would send this project back to the Bay
Area where it would either eventually receive its various
approvals or it would not. The supporters of the project
are confident that they will prevail in this process. The
opposition is convinced that it will defeat the project
using the same process.
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B. This approach should be adequate to show the investors
and the sponsors that a very judicious and responsible
process has been established by the Legislature to fairly
consider the public trust implications of the project
without prejudicing or interfering in the consideration of
the project by the reviewing regulatory agencies.
C. This approach would not require a two-year bill, but the
final public trust determination would not be made until
and unless the SLC reviews the project as part of its
consideration of the findings it has to make pursuant to
Section 5 of the bill and BCDC has issued a permit. The
SLC would then make the final public trust determination,
including finding that the project is in the best interest
of the state.
6. This approach would require several conforming amendments to
the bill which would be developed over the next several days.
SUPPORT
City and County of San Francisco (Sponsor)
A. Philip Randolph Institute San Francisco
A. Philip Randolph Institute Western Region
Asbestos, Lead and Mold Laborers Local Union 67
Bay Area Council
Boys and Girls Club of San Francisco
Bricklayers and Allied Craftworkers Local 3
Brightline Defense Project
Building Owners and Managers Association of San Francisco
CAL Insurance and Associates, Inc.
California Labor Federation
California Sate Pipe Trades Council
California State Association of Electrical Workers
California State Council of Laborers
Charity Cultural Services Center
Golden State Warriors
Hotel Council of San Francisco
International Brotherhood of Electrical Workers Local Union 6
Laborers' International Union of North American Local Union No.
261
Mission Hiring Hall
Operating Engineers Local Union No. 3
San Francisco Chamber of Commerce
San Francisco Citizens Initiative for Technology and Innovation
San Francisco Deputy Sherriff's Foundation
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San Francisco Fire Department
San Francisco Travel Association
Sign Display & Allied Crafts Local Union No. 510
Silicon Valley Leadership Group
Sprinkler Fitters and Apprentices Local 483
State Building and Construction Trades Council
Sustainable Futures
United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry
United Brotherhood of Carpenters and Joiners of American Local
Union No. 22
Western States Council of Sheet Metal Workers
Young Community Developers, Inc.
Many Individuals
OPPOSITION
Airport Area Business Association
Alameda County Board of Supervisors
City of Oakland
Mayor of Berkeley
Mayor of Oakland
Mayor of Richmond
Mayor of San Leandro
Oakland African American Chamber of Commerce
Pacific Merchant Shipping Association
Safe Storage
San Francisco Baykeeper
San Francisco Tomorrow
San Francisco Waterfront Alliance
Save Oakland Sports
Save The Bay
Shred Works
The Art Sign Company
The Sierra Club California
The Ultimate Sports Guide
Many Individuals
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